IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130311

Docket: M105957

Registry:
Vancouver

Between:

Jose
Daniel Perez-Alarcon,
by his Litigation Guardian, Ana Alarcon

Plaintiff

And

Denny
Wai-Keung Lee

Defendant

Before:
The Honourable Madam Justice S. Griffin

Reasons for Judgment

Introduction

[1]            
On June 25, 2010, a pedestrian was struck by a vehicle driven by the
defendant, Denny Wai-Keung Lee (“Mr. Lee”) at around 11:00 p.m. in
Vancouver, B.C.  The pedestrian, Jose Daniel Perez-Alarcon (“Mr. Alarcon”)
sustained a brain injury.  I have been advised he is unable to form the
capacity to testify.  His sister is his litigation guardian.  When I refer to
the plaintiff I am referring to Mr. Alarcon.

[2]            
The question before this Court is whether or not the defendant Mr. Lee
is wholly or only partly liable for the damages sustained by Mr. Alarcon
as a result of the accident.  Mr. Lee conceded in final submissions that
he was at least partly at fault for the accident.  This liability trial thus
requires determination of whether or not Mr. Alarcon or the City of
Vancouver were also partially at fault.

[3]            
There will be a subsequent trial to assess the quantum of Mr. Alarcon’s
damages.

Outline of Evidence

[4]            
Mr. Lee was driving south on Clark Drive, after crossing the
intersection with East 6^th Avenue (also known as “Great Northern Way”)
and 7^th Avenue, and was in the area of the intersection of 8^th
Avenue when his vehicle hit Mr. Alarcon.

[5]            
Mr. Alarcon was walking across Clark Drive from the direction of east
towards the west, at or about the south side of its intersection with 8^th
Avenue.

[6]            
There were several witnesses to the collision or to the events just
before the collision.

[7]            
The witnesses, who testified at trial, were:

(a)           
Mr. Robert Agland had been driving his car in an easterly direction
on 8^th Avenue and was stopped at the southwest corner of 8^th
Avenue and Clark Drive, poised to turn right (south), on Clark Drive, when he
witnessed Mr. Alarcon crossing the street and witnessed the collision;

(b)           
Mr. Jonathon Chao was driving his car south on Clark Drive and at
the time of the collision was several car lengths behind Mr. Lee’s car,
heading in the same direction and in the same lane as Mr. Lee;

(c)           
Mr. Chris Fyfe was a resident of the neighbourhood who was standing
on East 8^th Avenue, east of Clark Drive, on the south side of the
street, when he witnessed Mr. Alarcon walking and also witnessed Mr. Lee’s
approaching car before the collision;

(d)           
Mr. Ben Dodd is another resident in the neighbourhood, who was standing
with Mr. Fyfe just before the accident.  He heard the accident occur and
attended on Mr. Alarcon and witnessed the condition of Mr. Lee’s vehicle
after the accident; and

(e)           
Mr. Antonio Campo witnessed Mr. Alarcon’s condition and
ability to stand and talk and move prior to the accident, as he was socializing
with him in the moments before they parted company and the accident occurred.

[8]            
Mr. Lee, the defendant, also of course witnessed the accident and
testified at trial.

[9]            
In addition, members of the Vancouver Police Department took photographs
and measurements immediately after the accident, some of which have been
admitted into evidence.  They also prepared a helpful diagram of the scene.  A
member of the Vancouver Police Department who made observations at the scene
after the accident also testified, Constable Jeffrey Schell.

[10]        
The plaintiff tendered accident collision engineering opinion reports
from two experts.  The first report was by Mr. Craig Brown, a professional
engineer, dated November 7, 2012.  As well, the plaintiff tendered four reports
of Dr. Amrit Toor, also a professional engineer.

[11]        
The defendant tendered the expert opinion of Mr. John Lisman, a
consulting engineer with experience in road design and safety.

[12]        
The evidence revealed that Mr. Alarcon had significant alcohol
levels in his blood.  The defendant tendered the expert opinion of Ms. Carolyn
Kirkwood, an expert in blood toxicology and interpreting blood-alcohol levels
and the effects of alcohol on a person.

Factual Issues

[13]        
Certain factual issues emerged from the evidence relating to the
circumstances of the accident, including:

(1)           
in terms of Mr. Lee’s driving:

a.              
was he speeding at the time of the accident?

b.              
was he paying suitable attention to the approaching intersection at 8^th
Ave and the possibility of pedestrians crossing the street?

c.              
were the night headlights of Mr. Lee’s vehicle on or off?

(2)           
in terms of Mr. Alarcon’s movements as pedestrian:

a.              
was Mr. Alarcon traversing Clark Drive in the area of an “unmarked
crosswalk” at the time of the collision?

b.              
was Mr. Alarcon running across the street at the time of the
accident?

c.              
was Mr. Alarcon paying suitable attention to the approaching
traffic?

(3)           
in terms of the City of Vancouver, did it create a danger on the road
that contributed to the accident?  In this regard:

a.              
did the City of Vancouver road markings fail to alert Mr. Lee to
the intersection?

[14]        
I turn now to address the factual issues.

1. Mr. Lee’s Actions
as Driver

a.       Was Mr. Lee speeding at the time of the accident?

[15]        
The speed limit on Clark Drive in the area where the accident occurred
is 50 kilometers per hour (“kph”).

[16]        
Mr. Chao testified that he was driving south on Clark Drive on the
night of the accident when he came to a stop at a red stop light at the
intersection with 6^th Avenue.  Mr. Chao said that he was in the
lane closest to the centre of the road, i.e. the furthest left lane heading
south on Clark Drive.  Next to him was Mr. Lee, driving his blue Yaris.  Mr. Chao
did not know this at the time but later saw the accident and knew that the car
involved was the same as the one that had been next to him at the stop light on
6^th Avenue.

[17]        
At that stop light, there were three lanes heading south.  Later, just
before traffic travelling south reaches the intersection with 8^th
Avenue, a fourth lane emerges to allow drivers to turn left on the street one
block south of 8^th Avenue, namely Broadway.

[18]        
Mr. Chao was planning to turn right three blocks south of 6^th
Avenue, on Broadway, so when the light on 6^th Avenue turned green,
he accelerated quickly.  He noticed that when he accelerated, the car on his
right kept up with him.  He considered trying to overtake the car by speeding
up and pulling ahead of it, or simply dropping back to let that car pass him on
his right so that he could pull in behind it and eventually turn right.  He
decided on the latter course.

[19]        
Mr. Chao estimated that his top speed was 90 kph when he and the
car on his right next to him were driving “neck-and-neck”.  After that, he
slowed down to let the car pass him.  He pulled into the lane behind the car,
which was the second lane from the right.  He saw the car continue down the
road ahead of him and when they were approximately seven car lengths apart, he
saw a figure, for about a second, going in the direction of the car in front of
him and then he immediately heard a thump and saw a ball cap fly up in the air
and concluded that a pedestrian had been hit.  He immediately pulled over to
the side of the road and stopped his car.

[20]        
What Mr. Chao witnessed was the collision between Mr. Lee’s
car and Mr. Alarcon, although Mr. Chao’s view of it was directly
behind Mr. Lee’s car.  Mr. Chao estimated he was travelling at 70 kph
when he saw the accident.

[21]        
In cross-examination, it was put to Mr. Chao that in a statement
given to police immediately after the accident, he estimated that his top
acceleration after the traffic light was 60 kph, not the 90 kph speed to which
he testified at trial.  Mr. Chao admitted that he had given that statement
to police, but explained that he “undervalued” his speeds that night because he
thought he would get in trouble if he said he was driving at 90 kph.

[22]        
When Mr. Chao gave this evidence, he appeared sheepish and
sincere.  I found Mr. Chao’s evidence credible and note that he had
nothing to gain at trial from admitting how fast he was driving.  Mr. Lee’s
evidence was not inconsistent with his as to the two cars trying to overtake
each other, except he had their two cars one lane over when at the light at 6^th
Avenue.

[23]        
Mr. Lee testified that he was driving south on Clark Drive just
before the accident when he came to a stop at a red traffic light at the
intersection of 6^th Avenue.  He remembered being in the far right or
curb lane, not in the middle lane, but confirmed that there was a car beside
him to his left, in the middle of the three lanes heading south.  He also
recalled there being another car in the far left lane.

[24]        
Mr. Lee recalled that when the light at 6^th Avenue turned
green, he began driving and noticed up ahead that there were some cars parked
in his lane, the curb lane.  He could not recall where he saw them but thought
it was around the intersection with 7^th Avenue.  That intersection
has a marked crosswalk and a pedestrian controlled flashing light.  To avoid
the cars that were parked, Mr. Lee had to move his car over to the middle
lane.

[25]        
Mr. Lee admitted that as he was driving, the car to his left was
speeding up and he knew he had to speed up as well to get ahead of him and move
into that lane to avoid the parked cars.  He could not disagree with Mr. Chao’s
estimate that they may have reached speeds of 90 kph, he simply could not
recall.

[26]        
Mr. Lee did pull ahead of the car to his left and pull into the
middle lane.  He only saw the pedestrian almost instantaneously before he hit
him.  When he saw the pedestrian just in front of his car, he slammed on his
brakes and kept them on.

[27]        
Mr. Lee’s car, a Toyota Yaris, had what is commonly referred to as
a “black box”, “crash data recorder” or “airbag control module”, which recorded
certain data around the time of the accident.  It recorded the speed of the car
in 1 second increments, 4 seconds before the impact, and whether the brakes
were on or off.  Although it does not measure precisely the point of impact,
information can be extrapolated from it which suggests that 4 seconds before
the accident Mr. Lee was travelling at speeds of between 68 to 70 kph.  In
cross-examination, Mr. Lee admitted he was probably travelling those
speeds.

[28]        
The “black box” data is consistent with Mr. Lee slowing to 66-68
kph 3 seconds before the collision, 64-66 kph 2 seconds before the collision,
62-64 kph 1 second before the collision, then Mr. Lee slamming on his
brakes and hitting the pedestrian at a speed in the range of 52-54 kph.

[29]        
I accept Mr. Chao’s evidence as to his and Mr. Lee’s driving behaviour
and speeds just before the accident.

[30]        
I conclude that just prior to the collision, Mr. Lee was driving at
speeds up to 90 kph in the one to one and a half city blocks prior to the
collision (between the 6^th Avenue intersection and the accident
site, the 8^th Avenue intersection), and had probably reduced to
speeds of between 68 to 70 kph just a matter of 4 seconds or so before the
collision.  He was therefore driving at speeds well above the posted maximum
limit just before the collision.

b.       Was Mr. Lee
paying suitable attention to the approaching intersection at 8^th Avenue?

[31]        
Mr. Lee did not notice the pedestrian at all until the pedestrian was
just in front of his car, at the left corner of his bumper.

[32]        
By that time the pedestrian had crossed at least four or five lanes —
all the lanes of Clark Drive heading north, a left turning lane heading south,
the lane next to it, and then into Mr. Lee’s lane.

[33]        
Mr. Lee was candid at trial in admitting in cross-examination that
as he was driving along Clark Drive heading south, from 6^th Avenue,
his primary concerns were getting around the vehicles parked in his lane up
ahead, and getting in front of the car that was speeding up in the lane on his
left.  With these concerns, he was not even focussed on the upcoming
intersection of 8^th Avenue with Clark Drive, and he was not looking
for any pedestrians.

[34]        
That stretch of Clark Drive is an uphill grade from 6^th Avenue
to 8^th Avenue, cresting and flattening out around 8^th
Avenue.  It was a dry summer evening.  The area is well lit with street lamps.

[35]        
Mr. Chao could see the figure up ahead even though Mr. Chao
was approximately seven car lengths behind Mr. Lee.

[36]        
Mr. Agland could also see the pedestrian, who after crossing the
northbound lanes, had halted in the middle of the road before beginning to
cross the southbound lanes.  Mr. Agland was planning to turn right, into
the pedestrian’s way, and so was waiting for the pedestrian.  Mr. Agland
noted that the pedestrian made sure to catch his eye to see that Mr. Agland
noted his presence before the pedestrian continued crossing the road.  The
pedestrian was walking and just moments later was hit by Mr. Lee’s car.

[37]        
Mr. Agland’s evidence and Mr. Chao’s evidence leads me to
conclude that the pedestrian crossing the road was there to be seen by Mr. Lee
in advance of when Mr. Lee finally noticed him.  Had Mr. Lee been
properly focussed on his surroundings ahead of him, he would have seen the
pedestrian on his left, either at the center of the road or approaching the
center of the road from the east side, and then walking across the south lanes
of Clark Drive.

[38]        
Mr. Lee regularly drove this stretch of Clark Drive to return home
from work.  He knew that it was a residential area with apartment buildings on
both sides of the street.  He knew that there was a gas station and convenience
store on his side of the street located on Clark Drive between 8^th
Avenue and the next street, Broadway.

[39]        
I conclude that Mr. Lee ought to have expected that a pedestrian
might cross the street in that area and he was not paying suitable attention to
the road ahead of him and to the possibility a pedestrian could be crossing the
road.  If he had paid appropriate attention for the circumstances, he would
have seen the pedestrian in advance of when he did and in advance of Mr. Lee
reaching the intersection with 8^th Avenue.

c.       Were the headlights on Mr. Lee’s vehicle on or off?

[40]        
Mr. Fyfe testified that he saw the approaching car before it
reached 8^th Avenue and it did not have its headlights on, and that
after the collision it just had its parking lights on.

[41]        
Mr. Dodd has first aid training and he attended on the struck
pedestrian after the accident.  Mr. Lee’s car was parked where it had
stopped.  Mr. Dodd noticed that only the parking lights were on.  Mr. Dodd
was in a good position to note this as he was paying careful attention to the
surroundings for his own safety and to attend to the accident victim.

[42]        
Mr. Lee testified in direct that his headlights were on.  In
cross-examination, his evidence wavered, and changed to “maybe” they were not
on but that it was his habit to turn them on.  He agreed that he turned the
ignition in his car off after the accident.

[43]        
If only the parking lights were on after Mr. Lee turned his car
off, as observed by Mr. Fyfe and Mr. Dodd, this means that the
position of the light wand was in the parking light position, not the headlight
position, and not in the off position.  It would make no sense for a driver to
turn the lights from the headlight position to the parking light position
rather than fully off and Mr. Lee did not testify that he did so.

[44]        
I conclude that what must have happened is that Mr. Lee did not
adjust his lights after the accident, and simply turned the car off.

[45]        
Mr. Fyfe and Mr. Dodd were independent witnesses and had
reason to notice the headlights, given what occurred.  I accept their evidence
and find that Mr. Lee did not have his night headlights on when driving
just before the accident.

[46]        
Mr. Lee’s car did have day running lights and these go on
automatically when the car’s ignition is turned on.  These would have been on,
but without the night headlights.  This means that Mr. Lee’s car was not
giving him as much illumination in the forward direction as it could have and
was less visible to people looking in his direction than it could have been,
had the night headlights been on.

2. Mr. Alarcon’s
Actions as Pedestrian

a.       Was Mr. Alarcon
traversing Clark Drive in the area of an “unmarked crosswalk” at the time of
the collision?

[47]        
The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [Motor
Vehicle Act], defines a “crosswalk” as including one indicated by signs or
lines, and also an unmarked one, as set out in s. 119(1)(b):

119 (1) In this Part:

…

“crosswalk” means

…

(b)  the portion of a highway at an intersection that
is included within the connection of the lateral lines of the sidewalks on the
opposite sides of the highway, or within the extension of the lateral lines of
the sidewalk on one side of the highway, measured from the curbs, or in the
absence of curbs, from the edges of the roadway[.]

[48]        
“Intersection” is defined in the same section as:

"intersection" means
the area embraced within the prolongation or connection of the lateral curb
lines, or if none, then the lateral boundary lines of the roadways of the 2
highways that join one another at or approximately at right angles, or the area
within which vehicles travelling on different highways joining at any other
angle may come in conflict[.]

[49]        
Here there were sidewalks on the south side of 8^th Avenue and
an unmarked crosswalk across Clark Drive at the south side of the 8^th
Avenue intersection.

[50]        
Mr. Craig Brown, a professional engineer with experience in
accident reconstruction, provided an expert opinion on behalf of the
plaintiff.  He relied on Vancouver Police Department survey data and
photographs as accurately reflecting the final rest positions of Mr. Lee’s
car.  These measurements indicated that Mr. Lee’s car was stopped with its
front wheels fourteen metres south of the south curb of 8^th Avenue. 
Assuming that Mr. Lee braked fully and continuously from the start of the
unmarked crosswalk (which is consistent with his evidence), at the south curb
of 8^th Avenue, fourteen metres before the car stopped, and relying
on the grade of the street, the ABS braking system and the average stopping
speed of the car, it was his opinion that Mr. Lee’s speed at the unmarked
crosswalk was probably in the range of 52-56 kph.

[51]        
Mr. Brown compared his calculations to the subsequently recovered data
from the “black box” in the defendant’s car.  That data indicated a speed of
52-54 kph at the time of impact, which is consistent with Mr. Brown’s conclusions. 
Working backwards from the police measurements and taking into account braking,
Mr. Brown concluded that this “black box” data supported the opinion that Mr. Alarcon
was probably in the unmarked crosswalk at impact.

[52]        
Of the three expert engineers who testified, I found Mr. Brown’s
evidence to be the most relevant and persuasive.

[53]        
Mr. John Lisman, a professional engineer called by the defendant,
did not attempt to reconstruct where the pedestrian was at time of impact.

[54]        
Dr. Amrit Toor, another engineer who was qualified to give expert
opinion evidence on accident reconstruction, focused on the issue of sightlines
and not determination of the point of impact.  His evidence on the point of
impact was a reconstruction after obtaining the “black box” data, and was
consistent with that of Mr. Brown.  He agreed in cross-examination that if
the “black box” data was not available, the point of impact would have to be
determined, based on the throw distance of the pedestrian, as within a range
from the unmarked crosswalk to two to four meters south of the crosswalk.

[55]        
Dr. Toor’s evidence on the location of the point of impact was not
the focus of his expert opinion and I found his oral evidence in this regard to
be somewhat confusing.  I prefer Dr. Brown’s evidence, and noted that Dr. Toor’s
evidence is not inconsistent with Dr. Brown’s evidence being correct.

[56]        
In cross-examination, it was suggested to Mr. Chao that he had told
an investigator after the accident that the figure he saw crossing the street
before the accident was jaywalking.  However, he explained that this was an
assumption on his part, because he did not know about the concept of an
unmarked crosswalk.  He said that he could not say where the person was in
relation to the unmarked crosswalk.  I find his trial evidence to be true in
this regard, given his perspective from several lengths behind Mr. Lee’s
car and the very brief flash of time that he saw the pedestrian before the
collision.

[57]        
Mr. Fyfe described seeing Mr. Alarcon leaving the southeast
corner of Clark Drive and 8^th Avenue to begin crossing Clark Drive,
but then Mr. Fyfe’s attention moved elsewhere, until he heard the
accident.  The starting position of Mr. Alarcon to cross Clark Drive,
based on Mr. Fyfe’s evidence, was in the area of the unmarked crosswalk, around
a section of the sidewalk where the curb ramped down to the street to allow
wheelchair access.  Mr. Fyfe thought that from the starting position it
looked like Mr. Alarcon was planning to walk straight across 8^th
Avenue but he could not remember if he saw him take a few steps or not.

[58]        
Mr. Agland was the witness with the best view of Mr. Alarcon
crossing the south lanes of Clark Drive at the intersection with 8^th
Avenue.  As mentioned, he had been driving his car in an easterly direction on
8^th Avenue, and had stopped at its intersection with Clark Drive,
planning to turn right to head south on Clark Drive.  Thus he was at the
southwest corner of 8^th Avenue and Clark Drive.  He first noticed the
pedestrian when Mr. Alarcon was about half way across the street in the
middle of Clark Drive, and he did not see him walk across the northbound lanes
on the far side of the street.

[59]        
Mr. Agland described Mr. Alarcon as walking slightly to Mr. Agland’s
right, on the “crossway pathway” or “path”.  I find this description consistent
with the notion that Mr. Alarcon was walking in the area of the unmarked
crosswalk.

[60]        
Mr. Agland agreed that as the pedestrian walked across the
southbound lanes of Clark Drive, he may have started to cut off the corner as
he got closer to where Mr. Agland was, to be polite.  By his hand gestures
in giving this evidence, Mr. Agland was indicating a slight southwest
angle.  However, he said this was just before the pedestrian increased his gait
in apparent realization the he was about to be hit, and was struck.  This
evidence does not support a conclusion that Mr. Alarcon had taken several
steps to the south and out of the crosswalk, only that he started to angle his
path slightly before the collision.

[61]        
I find it more likely than not that Mr. Alarcon was in the area of
the unmarked crosswalk at the time of the collision for the following reasons:

(a)           
if Mr. Alarcon was intending to jaywalk or cut diagonally across
the road, he would not have started at the southeast corner of Clark Drive and
8^th Avenue, but instead, would have just started crossing from the
north side of 8^th Avenue where he had been walking;

(b)           
 Mr. Fyfe saw him start out in the unmarked crosswalk area on the
southeast corner and he formed the impression that Mr. Alarcon was
planning to head straight across Clark Drive;

(c)           
Mr. Agland saw him crossing in an area consistent with the unmarked
crosswalk immediately to Mr. Agland’s right;

(d)           
Mr. Agland witnessed Mr. Alarcon start to turn slightly south immediately
before the collision, but based on his evidence it is unlikely that Mr. Alarcon
had time to take sufficient steps to get out of the unmarked crosswalk before
the collision; and,

(e)           
Mr. Brown’s engineering reconstruction opinion, based on the
available data, concluded that the point of impact was in the unmarked
crosswalk.

b.       Was Mr. Alarcon
running across the street at the time of the accident?

[62]        
The defendant alleges that Mr. Alarcon ran into Mr. Lee’s path
of travel.

[63]        
The defendant relies on the evidence of Mr. Chao, his own evidence,
and his interpretation of accident reconstruction opinion evidence in support
of this allegation.

[64]        
Mr. Lee testified that when he was driving south on Clark Drive, at
the last second he saw from the corner of his eye a person running almost at
his left bumper and that is when he slammed on his brakes and the accident
happened.  However, I found his evidence that he saw the pedestrian running
unreliable, as it was inconsistent with his evidence that he was not looking at
the intersection for any pedestrians, and only saw the person move a very short
distance into his path from the left before the collision.  On examination for
discovery he agreed that he did not see Mr. Alarcon until he was right in
front of his car and did not know where he was in the intersection.

[65]        
I find that Mr. Lee did not observe Mr. Alarcon long enough
before the fact of the collision to witness anything about how fast Mr. Alarcon
was moving.

[66]        
Mr. Chao testified that as he was driving south on Clark Drive,
after Mr. Lee’s car passed him and Mr. Chao was in the same lane
behind him, he saw a figure going in the direction of Mr. Lee’s car then
heard a thump and saw a ball cap fly up into the air.  Mr. Chao deduced
that a pedestrian had been hit, pulled to the side of the road and stopped his
car.  Asked to estimate the time between when he saw the figure and the
collision, he said that it was a second at most.

[67]        
In cross-examination it was suggested to Mr. Chao that the figure
he saw was running.  He said that he could not say this, because what he saw
was a blur as his own car was moving and it was dark.  Mr. Chao agreed
that when he was interviewed by the police and gave a statement after the
accident, he told the police that he saw something dart across the street to
the left of the vehicle.  Mr. Chao also agreed that he had told an
investigator that the object was running and started from about the middle of
the road.  Mr. Chao did not agree that these previous statements were correct.

[68]        
At trial Mr. Chao was not willing to say that the figure was
running or where exactly the figure was placed.  He said that he had assumed it
was running but he only saw a blur for a second and in his mind he could make
the connection that it was coming from the left and the car was going to hit
it.

[69]        
Mr. Chao was an independent witness.  He did have a less than
honourable reason to be inaccurate in speaking to the police immediately after
the accident:  he had been speeding and one interpretation could be that he and
Mr. Lee had been briefly racing, and he was worried about getting into
trouble.  He was motivated to underestimate his speed, and may also have been
motivated to blame the victim.  However, by the time of trial he was under oath
and testifying in a courtroom, he had not been blamed for the accident, he had
time to reflect on the importance of being truthful, and I found him to be
sincere in giving his evidence.  I find his evidence at trial to be more
credible and reliable than statements he may have given previously.

[70]        
I find that Mr. Chao did not see the figure for a long enough
period to know how it was moving before the accident.  I do not consider that
his evidence supports the conclusion that Mr. Alarcon was running or
darting into Mr. Lee’s lane before the accident.

[71]        
As for the engineering opinions, these opinions were focussed on the
driver’s speed, sightlines, reaction times and the position of impact.  These
opinions did not attempt to assess the pedestrian’s speed but instead relied on
assumed facts regarding the pedestrian’s speed.  I do not find these opinions
helpful in drawing extrapolations as to whether or not Mr. Alarcon was
walking or running.

[72]        
Witnesses who saw Mr. Alarcon on 8^th Avenue before he
began crossing Clark Drive saw him walking, not running.

[73]        
Mr. Agland had the best view of Mr. Alarcon as he was crossing
the southbound lanes of Clark Drive, and he was paying close attention to him
as he was waiting for him to cross so that Mr. Agland could turn right. 
He testified that the man’s gait was normal until at one point he sped up his
gait, as if to block a tackle, and then he was hit.  He said that Mr. Alarcon’s
gait increased when he was in the lane in which he was hit.  Mr. Agland
surmised that it was just at the moment that Mr. Alarcon realized that he
was about to be hit.  While of course Mr. Agland’s opinion about what Mr. Alarcon
was thinking is not admissible for proof of the truth, it was a way of
describing what he observed.

[74]        
I find it unlikely that Mr. Alarcon was running or darting across
the street into the path of Mr. Lee’s vehicle.  I find that Mr. Alarcon
was walking across the street, and any quick movement on his part was more
likely as a last moment evasive action which unfortunately was not successful
in evading Mr. Lee’s car.

c.       Was Mr. Alarcon
paying suitable attention to the approaching traffic?

[75]        
The defendant argues that had Mr. Alarcon paid sufficient attention
when he was in the middle of Clark Drive, he would have seen Mr. Lee’s car
approaching from his right and could have avoided the collision.  Instead, by
stepping into the path of Mr. Lee’s car, it must logically be concluded
that Mr. Alarcon was not paying sufficient attention or that he was not
taking reasonable steps for his own safety.

[76]        
The question of whether Mr. Alarcon paid sufficient attention to Mr. Lee’s 
oncoming car is a difficult one.  But it is important to keep in mind that it
is the defendant who has the onus of proving that Mr. Alarcon failed to
pay sufficient attention or take reasonable steps for his own safety.

[77]        
I am unable to conclude that the defendant has met this onus of proof on
a balance of probabilities.

[78]        
There is no evidence from which to conclude that Mr. Alarcon ought
to have seen Mr. Lee’s vehicle before Mr. Alarcon even began crossing
Clark Drive.  The evidence does suggest however that Mr. Lee’s vehicle
would have been visible to Mr. Alarcon at some point from the time that Mr. Alarcon
was halfway across the street and about to cross or during his crossing of the
southbound lanes of traffic.

[79]        
Mr. Fyfe, who was at the southeast corner of 8^th Avenue
and Clark Drive, could see Mr. Lee’s approaching car about one-half block
before 8^th Avenue, despite it not having its night headlights on. 
The daytime running lights and the street lighting must have provided enough
illumination to see the car.

[80]        
Mr. Agland said that when he was stopped on the west side of 8^th
Avenue, he first looked left down Clark Drive and saw no cars coming, then he
looked ahead and saw Mr. Alarcon around the middle of the road.  He was a
careful and credible witness.  I accept his evidence and find that Mr. Lee’s
car was not yet visible when Mr. Alarcon reached the mid-way point of his
crossing.  This means that Mr. Alarcon may have started crossing the
southbound lanes in the moment before Mr. Lee’s car was visible.

[81]        
Several witnesses said that the street was well lit by street lamps.  The
fact that Mr. Lee did not notice that he did not have his car’s headlights
on is consistent with this evidence.

[82]        
But in such good lighting, I find that it would not be unreasonable for
a pedestrian to think that if he was in the middle of the street crossing at an
intersection, having already crossed one-half of the road, that he would be
well visible to oncoming traffic in the second half of the road if it appeared
in the distance and that it would yield to him.

[83]        
The evidence raises a number of possibilities of what might have been
seen or thought by Mr. Alarcon when he was starting to cross or during his
crossing of the second half of Clark Drive, across the southbound lanes:

(a)           
he may have looked and initially not seen Mr. Lee’s car, but looked
again and then seen Mr. Lee’s car approaching, and he may not have been
able to accurately judge its speed or distance, and concluded that it was far
enough away that it would either miss him or slow down when it saw him and
allow him to continue crossing, and so concluded that continuing to cross the
road was a reasonable and safe course, rather than continuing to stand in the
middle of the road or turning back across the northbound lanes;

(b)           
he may have looked and seen not only Mr. Lee’s car approaching but
other cars as well, in various lanes of oncoming traffic (this is consistent
with Mr. Lee’s evidence about his car changing lanes and about other cars
being in the other southbound lanes), and he may have concluded that his only
safe course was to continue to try to complete his crossing of the road; or,

(c)           
he did not look and did not see Mr. Lee’s car approaching and
carelessly walked into its path, too late for Mr. Lee to avoid him.

[84]        
Mr. Agland did not see Mr. Alarcon look to Mr. Alarcon’s
right, but this does not mean that Mr. Alarcon did not do so, as Mr. Agland
did not say that he was watching Mr. Alarcon the whole time.

[85]        
I agree with the defendant that had Mr. Alarcon looked to his right
during the seconds when he was crossing the southbound lanes of Clark Drive, he
ought to have seen Mr. Lee’s car approaching.  I disagree that the fact
that Mr. Alarcon ended up in the accident logically means that he did not
look to his right or did not take proper safety precautions.  I find that the
possibilities (a) and (b) above are more likely than possibility (c).

[86]        
The defendant argues that if Mr. Alarcon had looked and seen Mr. Lee’s
car, he had time to react and get out of its way.

[87]        
Based on the “black box” data and the speeds of Mr. Lee’s car
recorded in 4 second increments prior to impact, Mr. Lee’s car would have
been about 71 meters away and travelling at a speed in the range of 68 kph to
just under 70 kph, 4 seconds before impact.  This is consistent with both Dr. Toor’s
and Mr. Brown’s evidence.

[88]        
The defendant argues that Mr. Alarcon had at least 4 seconds of
unobstructed view of Mr. Lee’s car before walking or running into Mr. Lee’s
lane of traffic, and with Mr. Lee’s car about 71 meters away, the
pedestrian had the best chance of avoiding the accident and he ought not to
have moved into the path of Mr. Lee’s vehicle.

[89]        
 Mr. Brown agreed in cross-examination that a pedestrian from the
center of the road would have an unimpeded view and because of the vehicle
headlights, it would be easier for the pedestrian to see the vehicle than the
other way around.  His opinion was that from the east curb of Clark Drive to
the point of impact, the walking speed could be 10.3 seconds to 12.5 seconds;
or, from the centre of Clark Drive to point of impact, the walking speed could
be 4.4 to 5.4 seconds.  This is based on the 15^th to 85^th
percentile range for unimpaired males in their mid-30s.  He agreed that for 4
seconds, the pedestrian would have had an obstructed view of Mr. Lee’s
car.

[90]        
Dr. Toor was instructed to assume that the pedestrian had run from
the center of Clark Drive to the center of Mr. Lee’s lane of traffic prior
to collision.  He estimated this distance to be 8.2 meters, and that it would
take 3.5 to 4.0 seconds to run the distance, starting from a stopped position.

[91]        
Dr. Toor’s opinion was that if Mr. Lee had decelerated even by
half-braking, the reduced speeds would have been enough time to allow the
pedestrian to pass, as it would have given the pedestrian another 1.6 to 2.1
seconds, and he would have made it through Mr. Lee’s lane.

[92]        
Dr. Toor’s opinion also was that if Mr. Lee had been traveling
at a lesser speed of 58 kph or less when he was 61 to 71 meters away from
impact, or 3.5 to 4 seconds prior to impact, then the impact also could have
been avoided because the pedestrian would have cleared the path of the vehicle
without any further action being needed by the driver.

[93]        
This evidence does not satisfy me that Mr. Alarcon was at fault for
not perceiving that Mr. Lee’s car was driving at a speed or distance that
would not allow Mr. Alarcon to complete the crossing safely.  I do not
know how a pedestrian would be able to judge that a car travelling at night is
travelling at a speed of 68 kph rather than 58 kph when it was 71 meters away.

[94]        
There was no expert evidence as to how a pedestrian in Mr. Alarcon’s
situation on the road at night, with a car some distance away without its night
headlights on, ought to be able to assess speed and distance.  Given the
evidence that Mr. Lee had driven up to speeds of 90 kph before slowing,
and that his car was not visible when Mr. Agland looked left and then
looked ahead and saw Mr. Alarcon, it seems likely that Mr. Lee’s car
appeared more quickly than could reasonably be expected and took Mr. Alarcon
by surprise.  Alternatively, given the evidence that Mr. Lee had slowed
down his car to around 68 kph to 70 kph, perhaps a pedestrian in Mr. Alarcon’s
position would perceive that the vehicle was slowing and would assume that it
would continue to slow down and yield, and would be unable to judge that it
posed a danger until it was too late.

[95]        
The defendant has not proved on a balance of probabilities that Mr. Alarcon
ought to have realized that Mr. Lee’s car was approaching too fast or realized
that Mr. Lee was not paying sufficient attention to the road in front of
him and would not decelerate, such that it made it unsafe for Mr. Alarcon
to complete his road-crossing.

[96]        
The notion that Mr. Alarcon failed to pay proper attention to approaching
traffic is inconsistent with the care with which he crossed the street:  he
crossed at the intersection with 8^th Avenue, rather than in the
middle of the block; he took care when he observed Mr. Agland’s vehicle
and assessed his safety in crossing given Mr. Agland’s intended direction
of travel.  Such actions are not the mark of someone who was oblivious to his
own safety in crossing the street.

[97]        
The one factor that creates some doubt about whether or not Mr. Alarcon
was able to look out for his own safety is the factor of his blood-alcohol
levels.  The evidence identified that he had a level of alcohol in his blood at
the time that would cause severe impairment in an average person.

[98]        
Mr. Alarcon had blood alcohol concentrations of between 280 and 300
mg of alcohol in 100 ml of blood at around the time of the accident.  By way of
comparison, this is more than three times the legal limit for the operation of
a motor vehicle, although there is of course no traffic penalty for drinking
and walking.

[99]        
The defendant’s expert witness, Ms. Carolyn Kirkwood, provided
opinion evidence as to how this level of alcohol consumption would affect an
average person.  An average person would have a stumbling gait, loss of
balance, an inability to choose between alternatives, loss of judgment, loss of
reaction time, loss of depth perception and peripheral vision, prolonged glare
recovery time, and reduced distance and speed judgment.

[100]     There were
two problems with the evidence of Mr. Alarcon’s blood-alcohol level.

[101]     First, there
was no evidence as to whether or not Mr. Alarcon was an average person, as
opposed to someone with an exceptionally rare but high tolerance for alcohol
consumption.  While I appreciate that the evidence of Mr. Alarcon’s
alcohol tolerance might be difficult for the defence to obtain, the defence did
not subpoena any family members or other witnesses to testify as to Mr. Alarcon’s
drinking habits.

[102]     The only
witness who testified about Mr. Alarcon’s drinking habits was Mr. Campos,
a friend who had spent time with Mr. Alarcon that day playing bocce in a
park.  Mr. Campos walked with Mr. Alarcon to the intersection of 8^th
Avenue and Clark Drive, leaving him there just before Mr. Alarcon crossed the
street and the accident occurred.  Mr. Campos testified that Mr. Alarcon
was talking and walking normally.

[103]     Mr. Campos
agreed in cross-examination that he had not spent all day with Mr. Alarcon
and that they had a few beer that day, but he said that he did not know whether
or not Mr. Alarcon was an alcoholic.

[104]     Other
witnesses who saw Mr. Alarcon walking did not observe any behaviour that
indicated to them that he was having trouble with his balance or was impaired. 
A total of four witnesses, Mr. Campos, Mr. Fyfe, Mr. Dodd and Mr. Agland
saw him walking normally just before the accident, and not with the lack of
balance or stumbling gait that should have been evident had he been a normal
person without a high tolerance for alcohol, who had consumed as much alcohol
as his blood later revealed.  This would suggest he did have a high tolerance
for alcohol.

[105]     The second
problem with the evidence of Mr. Alarcon’s blood-alcohol level is that
there was no evidence to suggest that a normal person in his position would
have behaved differently and been able to perceive and react to take different
actions than he did in crossing the road.  A normal unimpaired pedestrian may
have perceived that Mr. Lee’s car would have slowed down or have been far
enough away or that other road conditions such as other vehicles were such that
the safest course for the pedestrian would have been to complete his road
crossing once he had already made it to the middle of the road.

[106]     Therefore
while I am able to conclude that Mr. Alarcon consumed a significant
quantity of alcohol before the accident, on the state of the evidence I am not
able to conclude that this meant that he failed to pay sufficient attention to
approaching traffic when he was crossing the street, or failed to respond
reasonably to the approaching traffic.

[107]     The defendant
also argues that Mr. Alarcon should have known to expect cars to be
speeding on Clark Drive, and should have used a safer crosswalk, one with
traffic lights of which there was one a block south and one a block north, especially
since he was wearing clothing that looked dark at night.  But Mr. Alarcon
was acting legally in crossing the street and the area was a well lit residential
area, frequented by pedestrians, with a speed limit of 50 kph presumably in
recognition of this.  I do not agree that a pedestrian fails to pay sufficient
regard for his own safety if he chooses to legally cross a road in such
circumstances.

[108]     In
conclusion, I am not persuaded on a balance of probabilities that Mr. Alarcon
had sufficient time to take evasive action had he looked and seen Mr. Lee’s
car. The evidence falls short of establishing that given the other traffic and conditions
and the fact that he was already half-way across the road, that Mr. Alarcon’s
decision to continue on his path across the road was unreasonable and careless
in all the circumstances.

3. Did the City of Vancouver create a danger on the road that
contributed to the accident?

[109]     The City
of Vancouver was named as a defendant by the plaintiff however as a result of
an agreement reached between the City and the plaintiff, that claim has since
been discontinued.  The plaintiff has amended its claim to plead that the
plaintiff waives any right to recover from Mr. Lee any portion of the loss
which the court may attribute to the fault of the City of Vancouver, or for
which Mr. Lee might be able to claim contribution, indemnity or an
apportionment against the City under the Negligence Act, R.S.B.C. 1996,
c. 333.

[110]     Mr. Lee
pleads that the City was negligent.  If it was, this will reduce any liability
of the defendant to the plaintiff.

[111]     One of the
factual issues at the start of this trial regarding the City of Vancouver had
to do with a temporary traffic sign and whether it partially obstructed Mr. Lee’s
sight lines from Clark Drive to the east side of the pedestrian unmarked
crosswalk at 8^th Avenue.  This was the issue to which the expert
opinions of Dr. Toor and Mr. Lisman were primarily directed.

[112]     This issue
was abandoned by the defendant in closing submissions.  There was ample
evidence that the sign was not a factor in this accident.

a.       Did the City of
Vancouver road markings fail to alert Mr. Lee to the intersection?

[113]     The remaining
issue regarding the City has to do with the road markings on Clark Drive at 8^th
Avenue.

[114]     The
defendant alleges that the City failed to observe standards of road markings in
that it allowed the painted lines for the lanes of traffic to continue on Clark
Drive through the intersection with 8^th Avenue.  To put it another
way, there was no break in the painted lines on Clark Drive at the intersection
which might alert a driver to the fact of the intersection.

[115]     There was
no evidence that the road markings in anyway misled Mr. Lee to conclude
that there was not an intersection on Clark Drive at 8^th Avenue
which might be crossed by pedestrians.  Mr. Lee was very familiar with
this stretch of road, driving it regularly to and from work and home for years,
and knew there was an intersection at 8^th Avenue.

[116]     I find
that the defendant did not establish any actions or omissions on the part of
the City of Vancouver which contributed to the accident.

Negligence Issues

[117]     Having
made the above findings of fact, the question is whether Mr. Lee alone or Mr. Alarcon
also negligently caused or contributed to the accident.

[118]     Pedestrians
and drivers owe a common law duty to take reasonable care for the safety of
others and themselves when using a roadway, as explained in multiple
authorities including Anderson v. Kozniuk, 2011 BCSC 1678, aff’d 2013
BCCA 46, and Cairney v. Miller, 2012 BCSC 86.  This common law duty of
care is supplemented by statutory duties found in the Motor Vehicle Act.

[119]    
The following provisions of the Motor Vehicle Act have some
bearing:

179(1) Subject to section 180, the driver of a vehicle must
yield the right of way to a pedestrian where traffic control signals are not in
place or not in operation when the pedestrian is crossing the highway in a
crosswalk and the pedestrian is on the half of the highway on which the vehicle
is travelling, or is approaching so closely from the other half of the highway
that he or she is in danger.

 (2) A pedestrian must not leave a curb or other place
of safety and walk or run into the path of a vehicle that is so close it is
impracticable for the driver to yield the right of way.

…

180 When a pedestrian is crossing a highway at a point not in
a crosswalk, the pedestrian must yield the right of way to a vehicle.

181 Despite sections 178, 179
and 180, a driver of a vehicle must

(a) exercise due care to avoid
colliding with a pedestrian who is on the highway,

(b) give warning by sounding the
horn of the vehicle when necessary, and

(c) observe proper precaution on observing a child or
apparently confused or incapacitated person on the highway.

[120]    
In Dionne v. Romanick, 2007 BCSC 436, Gray J. summarized the
leading case law dealing with the question of whether or not a pedestrian
struck when in a crosswalk is contributorily negligent, at paras. 88-93 as
follows:

88        The Supreme Court of Canada set out three pertinent
legal principles in British Columbia Electric Railway Co. v. Farrer,
[1955] S.C.R. 757, [1955] 5 D.L.R. 161, as follows:

(a)        When
any contributory negligence is set up as a defence, its existence does not
depend on any duty owed by the injured party to the party sued; what is
required is to establish that the injured party did not, in his or her own
interest, take reasonable care for himself or herself and contributed, by want
of care, to his or her own injury;

(b)        Having
the right-of-way does not eliminate the common law duty to use care for one’s
own safety; and

(c)        Stepping
from the curb into a crosswalk with the right-of-way without looking in the
direction of a known danger will generally amount to an act of contributory
negligence if an injury results.

89        Mr. Farrer was struck by a bus in a crosswalk
in Vancouver at the intersection of Pender and Beatty Streets.  Mr. Farrer
stood waiting at the curb, glanced to his left, saw a bus and looked away from
the bus.  After the sign indicating that he could walk became illuminated, he
did not look back at the bus, but instead left the curb and started walking in
the crosswalk.  The bus driver drove through the intersection essentially on a
red light and struck Mr. Farrer when he was a few steps into the
crosswalk.  Mr. Farrer was held to be 20% contributorily negligent by
failing to look and observe the bus before leaving the curb.

90        The law applicable to pedestrians in crosswalks was
considered by Donald J., when he was a judge of this Court, in Miksch v.
Hambleton, [1990] B.C.J. No. 1810 (S.C.).  He explained that the
Supreme Court of Canada, in both Petijevich v. Law, [1969] S.C.R. 257 and
Coso v. Poulos, [1969] S.C.R. 757, had decided as follows:

… once a pedestrian has safely entered a crosswalk, absent
any overt negligence such as running or gesturing that could mislead motorists
into thinking they may proceed safely, the pedestrian may assume that the
motorists will yield the right-of-way and will share no responsibility if
struck in the crosswalk.

91        The defence argued that Petijevich can be
distinguished because in that case there was no evidence showing that the
plaintiff crossed the highway without looking to see whether it was safe to do
so, or did anything to jeopardize her own safety once she made substantial
entry into the intersection.

92        The burden on the defendant where the plaintiff
pedestrian had the right of way was described by Wallace J.A. as follows in Feng
v. Graham (1988), 25 B.C.L.R. (2d) 116 (C.A.), at p. 120:

In my view the plaintiff in the circumstances of this case
was entitled to assume that the defendant was going to obey the law and yield
the right-of-way to her.  Her right to rely on that assumption continued until
such time as she knew, or ought to have known, that the defendant was not going
to grant her the right of way, whereupon the plaintiff’s obligation to avoid
injury to herself superseded her right to exercise her right of way.  The onus
is on the defendants to establish that the plaintiff knew, or ought to have
known, that the defendant driver was not going to grant her the right of way,
and that, at that point of time, the plaintiff could reasonably have avoided
the accident.

93        Taylor J. discussed the defendant’s difficult
burden of proof as follows in Olesik v. Mackin, [1987] B.C.J. No. 229:

The defendants contend that Mr. Olesik had his head
down as he was crossing the road, that he failed for this reason to see their
vehicle, and that he should accordingly be held at least partly to blame for
the accident.

It was a dark, rainy January evening and the evidence
suggests that Mr. Olesik was probably looking down, protecting himself
from the elements.  But I find no adequate basis in the evidence for the
contention that his failure continually to watch approaching vehicles caused or
contributed to his injuries.

To meet the onus which rests on the defendants to prove such
an allegation of contributory negligence, they must, in my view, establish much
more than inadequate attention on Mr. Olesik’s part.  They must also
establish: (i) at what distance a person in Mr. Olesik’s position should
have realized, from the speed of the approaching headlights, that the
defendants’ car was not going to yield him the right of way; (ii) that it would
then have been possible for such a pedestrian, by stopping, going back or
rushing forward, to avoid their car; and (iii) that a reasonable person in Mr. Olesik’s
circumstances – a senior citizen pushing a cart – would have taken and
succeeded in such evasive action.

The evidence being quite inadequate to establish such a
case, I find the defendant alone responsible for his injuries.

[121]     I have
found on the facts that Mr. Alarcon was in the unmarked crosswalk at the
time of the collision.  Based on the Motor Vehicle Act, Mr. Lee
ought to have yielded to him.

[122]     Even if Mr. Alarcon
was not precisely in the boundaries of the unmarked crosswalk, he was not
darting out between cars or in the middle of the block.  Rather he had started
out in the unmarked crosswalk and was travelling in it or close to it, in an
area of the intersection.  Just as in Dao (Guardian ad litem of) v. Sabatino
(1996), 24 B.C.L.R. (3d) 29 at para. 39 (C.A.), the pedestrian was close
enough to the unmarked crosswalk that an oncoming driver should have been alert
to the possibility of a pedestrian’s presence in that area.  Mr. Alarcon
was far enough away that Mr. Lee had time to react — it was not “impracticable”
for him to yield within the meaning of s. 179(2) of the Motor Vehicle
Act, as Mr. Lee only had to slow down or brake and Mr. Alarcon
would have been safe.

[123]     The
intersection was well lit, and despite the fact he was wearing dark clothing, Mr. Alarcon
ought to have been visible had Mr. Lee been paying attention.  Mr. Lee
was far enough away when Mr. Alarcon began crossing that had he not been
driving above the speed limit, the collision might have been avoided.  While
many drivers do speed along Clark Drive, the posted speed has to be presumed to
be there for a reason, and Mr. Lee knew that it was a residential
neighbourhood with pedestrians, and that there was a store on his side of the
street just south of 8^th Avenue.  He knew that 8^th Avenue
was an intersection and ought to have foreseen that a pedestrian might be
crossing in the area of it.

[124]     It is
unknown whether or not Mr. Lee’s failure to have his night headlights on
contributed to the collision.  But he was negligent in driving too fast and
without sufficient attention to the possibility of pedestrians, and these
failures did cause the accident.

[125]     Mr. Alarcon
had a duty to take reasonable steps for his own safety.  He crossed at an
unmarked crosswalk, when there were safer crosswalks available one block in
either direction, and he was not wearing reflective clothes.  However, this
does not approach negligence on his part, given that it was a clear night and
the area was well lit.

[126]     Mr. Alarcon
made it to the middle of Clark Drive safely.  There was no median there, simply
a yellow line.  This was not a “place of safety” within the meaning of s. 179(2)
of the Motor Vehicle Act, as held in Ho v. Balanecki, [1990]
B.C.J. No. 1747 (S.C.).

[127]    
As Mr. Alarcon started walking across the southbound lanes, Mr. Lee’s
car was probably, at the closest, 70 metres away but could have been farther.  In
Garcia (Litigation Guardian of) v. Charters, 2006 BCSC 875 the court
held:

52        It would, in my
opinion, be entirely proper for a pedestrian to venture across a street, in a
crosswalk, knowing that an oncoming vehicle was 70 metres distant.  A
pedestrian is entitled to assume that the motorist would observe the statutory
right of way rule.  To expect the pedestrian to maintain a constant observation
of a vehicle approaching from that distance would constitute a partial transfer
of the obligation to avoid a collision to the pedestrian.  This, in my opinion,
would be unrealistic and contrary to the intent of s. 179 of the Act.
Pedestrians come in all ages, shapes and sizes.  Some are more visible than
others.  All are prone to distraction.  Ms. Garcia, though intoxicated,
was in no different position than, say, a child bouncing a ball or a parent
dragging a reluctant child.

[128]     On the
facts as I have found them, the defendant has failed to persuade me on a
balance of probabilities that Mr. Alarcon is at fault for the way he
crossed the street, or that he failed to pay sufficient attention to Mr. Lee’s
vehicle, or to take evasive actions for his own safety.  The evidence does not
establish that it was reasonably apparent that Mr. Lee’s car presented a
danger (to borrow the language of Nelson v. Shinske, [1991] B.CJ. No. 3841
(S.C.)), or that Mr. Alarcon was careless in assuming that he had time to
get across Clark Drive, that Mr. Lee’s vehicle would not be approaching so
quickly, or would not slow down or stop.  When Mr. Alarcon began crossing
the southbound lanes of Clark Drive, Mr. Lee had plenty of ability to
yield the right of way and could easily have done so had he been paying
attention.

[129]     In the
result I find that the defendant is wholly at fault for the damages caused to Mr. Alarcon
by the accident.

[130]    
If practicable and convenient, I will hear the damages trial, but if not
practicable and convenient, the damages trial may be heard before any other
judge. 

“S.A. Griffin, J.”
The Honourable Madam Justice Susan A. Griffin